United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER
F. Cox United States District Court Judge
are eleven firefighters who were laid off by the City of
Detroit during a reduction in force. Plaintiffs were recalled
to work 80 days after being laid off and the Union
successfully grieved their layoffs, securing a settlement
under which the City agreed to a “make-whole”
award of backpay for each Plaintiff. In this action,
Plaintiffs assert a Title VII race discrimination claim
against the City, and against their Union. Discovery closed
and all discovery disputes have been resolved.
matter is before the Court on motions for summary judgment
brought by the City and the Union. The motions have been
fully briefed and none of the parties requested to file
supplemental briefs, or to submit any additional evidence,
after the parties resolved their discovery
Court finds that oral argument would not aid the decisional
process. See Local Rule 7.1(f)(2), U.S. District
Court, Eastern District of Michigan. The Court therefore
orders that the motions will be decided upon the briefs.
reasons set forth below, the Court shall GRANT the motions
for summary judgment filed by Defendants, but shall DENY
their requests for sanctions.
the City's Motion, the Court concludes that the only
Plaintiff who has exhausted his administrative remedies such
that he can pursue a Title VII claim against the City in this
action is Rivera. Nevertheless, the Court shall address the
City's remaining challenges as to all Plaintiffs. The
Court concludes that Plaintiffs have failed to present direct
evidence to support their claims. The Court also concludes
that Plaintiffs' have failed to establish a prima facie
case, under the circumstantial evidence approach, which
includes a heightened burden in this reduction-in-force case.
the Union's Motion, it shall be granted because
Plaintiffs cannot establish that the Union breached its duty
of fair representation to Plaintiffs, which Plaintiffs must
do in order to proceed with a Title VII claim against a union
in the Sixth Circuit. The Union's motion shall also be
granted because Plaintiffs have been reinstated and made
whole, and other types of damages claimed by Plaintiffs are
unavailable as to the Union.
filed this action on September 10, 2013. On October 29, 2013,
this Court issued an “Order Of Removal Of Action As A
Pending Matter” (D.E. No. 4) because of the bankruptcy
stay pertaining to the City of Detroit.
August 13, 2014, the City of Detroit filed a notice
indicating that the bankruptcy stay had been lifted. (D.E.
First Amended Complaint
11, 2015, Plaintiffs filed a one-count First Amended
Complaint, which is the operative complaint. (D.E. No. 12).
are eleven individual Plaintiffs in this action: 1) Erick
Peeples; 2) Perry Anderson; 3) Vincent Fields; 4) Arnold
Freeman; 5) Ralph Glenn, Jr.; 6) Jamal Jennings; 7) Lee
Jones; 8) Anthony McCloud; 9) Exander Poe; 10) David Rivera;
and 11) Samuel Shack. Rivera is Hispanic and the remaining
Plaintiffs are black.
Plaintiff asserts a Title VII disparate-treatment race
discrimination claim against Defendants City of Detroit
(“the City”) and Detroit Fire Fighters
Association, Local 344, IAFF, AFL-CIO (“the
Union” or “DFFA”).
allege that the applicable CBA provides that layoffs shall be
done in accordance with “Human Resources Department
Rules XI and XIV which were in effect on July 1, 1977 . .
.” (First Am. Compl. at ¶ 12).
alleges that those rules define seniority to mean
“total city seniority” and that employees are to
be laid off “in the inverse order of total city
seniority.” The City denies those allegations as
untrue. (First Am. Compl. and City's Answer at ¶ 13
allege that after the City announced that layoffs would take
place in the City of Detroit's Fire Department, the City
sent out one or more lists of the employees to be laid off,
which was according to total City seniority, and that
Plaintiffs were not on the lists. (First Am. Compl. at ¶
allege that the Union objected to those layoffs, and
“sent a letter to the City setting forth its
objections, falsely claiming that the proposed lay-offs
violated” the CBA. (First Am. Compl. at ¶ 23).
They allege that the City and the Union held a meeting about
the layoffs and that, after that meeting, the City
“rescinded the original lay-off list and replaced it
with a lay-off list that reduced several Black or Hispanic
firefighters, ” including Plaintiffs, “who had
more City seniority than Caucasian firefighters” who
were not on that list. (First Am. Compl. at ¶ 25).
First Amended Complaint indicates that each of the Plaintiffs
were recalled to work as firefighters on October 29, 2012.
(First Am. Compl. at ¶¶). It states that, with the
exception of one Plaintiff who took work as a firefighter
elsewhere (Anderson), each of the Plaintiffs was reinstated,
and grieved their layoff and had some backpay paid to them as
part of the settlement of their grievance (Peeples, ¶
33; Fields ¶ 73; Freeman ¶ 93; Glenn ¶ 113;
Jennings ¶ 133; Jones ¶ 153; McCloud ¶ 173;
Poe ¶ 193; Rivera ¶ 213; and Shack ¶ 233).
seek the following relief: 1) back pay and benefits lost due
to the layoff; 2) compensatory damages; 3) punitive damages;
and 4) attorney fees, and interest. (First Am. Compl., D.E.
No. 12, at Pg ID 81).
Scheduling Order And Discovery Disputes
On March 1, 2016, this Court issued the Scheduling Order in
this matter. The Court ordered, among other things, that
discovery was to close on April 29, 2016.
parties filed several discovery motions, which this Court
referred to the magistrate judge assigned to this case,
beginning on January 28, 2016.
April 18, 2016, Counsel for the Union sent Plaintiffs'
Counsel a letter asking Plaintiffs to dismiss the claims in
this action against the Union. (D.E. No. 58-51). That letter
set forth the Union's position as to why Plaintiffs
cannot prevail in this action. Among other things, the
Union's letter addressed damages, including the argument
that Plaintiffs had been made whole in terms of backpay, and
arguments as to why Plaintiffs cannot recover other types of
damages they seek in this action.
City Filed A Motion For Summary Judgment Following The Close
Of Discovery, Although Discovery Motions Were Still Pending
Before The Magistrate Judge, But Thereafter This Court
Resolved All Discovery Disputes.
the close of discovery, the City filed a Motion for Summary
Judgment (D.E. No. 54) and the Union filed its own Motion for
Summary Judgment. (D.E. No. 56).
hearing had been scheduled on the motions, and this Court
began reviewing them, this Court realized that there were
discovery motions still pending before the magistrate judge.
This Court then issued an order adjourning the summary
judgment hearing, pending rulings on the discovery motions
before the magistrate judge. (See 9/28/16 Text-Only
counsel for the parties requested that the Court hold a
Status Conference to discuss the outstanding discovery
motions, a September 22, 2016 order the magistrate judge had
issued (that did not address the merits of the motion), and
objections to same. At a October 11, 2016 Status Conference,
this Court explored all of the outstanding discovery issues
with the parties and they resolved all of their disputes.
Thus, this Court issued an order on October 16, 2016,
withdrawing the reference to the discovery motions filed as
Docket Entry Numbers 43, 52, and 53, and set aside the
magistrate judge's September 22, 2016 order. (D.E. No.
discussed and agreed at the October 11, 2016 Status
Conference, the Court rescheduled the summary judgment
hearing for January 26, 2017, and the parties submitted a
Stipulated Order wherein (D.E. No. 89) they stated that they
had resolved all issues pertaining to the discovery motions.
Relevant Facts Set Forth In The Parties' Briefs
Court's practice guidelines, which are expressly included
in the Scheduling Order issued in this case, provide,
consistent with Fed.R.Civ.P. 56 (c) and (e), that:
a. The moving party's papers shall include a separate
document entitled Statement of Material Facts Not in Dispute.
The statement shall list in separately numbered paragraphs
concise statements of each undisputed material fact,
supported by appropriate citations to the record. . .
b. In response, the opposing party shall file a separate
document entitled Counter-Statement of Disputed Facts. The
counter-statement shall list in separately numbered
paragraphs following the order or the movant's statement,
whether each of the facts asserted by the moving party is
admitted or denied and shall also be supported by appropriate
citations to the record. The Counter-Statement shall also
include, in a separate section, a list of each issue of
material fact as to which it is contended there is a genuine
issue for trial.
c. All material facts as set forth in the Statement of
Material Facts Not in Dispute shall be deemed admitted unless
controverted in the Counter-Statement of Disputed Facts.
(D.E. No. 38 at 2-3).
compliance with this Court's guidelines, in support of
its Motions for Summary Judgment, the City filed a
“Statement of Material Facts Not In Dispute”
(D.E. No. 55) (“the City's Stmt.”). In
response to that submission, Plaintiffs filed a
“Counter-Statement of Disputed Facts” (D.E. No.
70) (“Pl.'s Stmt. C”).
support of its Motion for Summary Judgment, the Union filed a
“Statement of Material Facts Not In Dispute”
(D.E. No. 57) (“the Union's Stmt.”). In
response to that submission, Plaintiffs filed a
“Counter-Statement of Disputed Facts” (D.E. No.
71) (“Pl.'s Stmt. U”).
Counsel filed statements responding to both of the above
statements by Defendants. However, Plaintiffs' Counsel
certainly did not comply with either the letter or the spirit
of the Court's guidelines, which are intended to narrow
the facts that are truly in dispute. Throughout
Plaintiffs' statements, Counsel includes, and continues
to restate, unnecessary objections. Plaintiffs' Counsel
also denies various factual statements, even though
Plaintiffs' response indicates the statement is true.
(See, e.g., Paragraph 4 of the Union's Stmt. and
Pls.' Response to same; Paragraph 11 of the Union's
Stmt. and Pls.' Response to same).
event, the relevant facts, established by the record evidence
submitted by the parties, are as follows.
Union, DFFA, is the certified collective bargaining agent for
the uniformed firefighters of the City of Detroit Fire
Department. (First Am. Compl., and City's Answer to same,
at ¶ 5). At all pertinent times, the City and the Union
were parties to a collective bargaining agreement (CBA).
(Union's Stmt. and Pls.' Stmt. U at ¶ 3).
are eleven City firefighters and Union members that were
affected by an August 2012 reduction in force. (Union's
Stmt. and Pls.' Stmt. U at ¶ 4). Rivera is Hispanic
and the remaining ten Plaintiffs are black. (Union's
Stmt. and Pls.' Stmt. U at ¶ 5 & 6).
20, 2012, the City notified the Union of an impending
reduction in force. (City's Stmt. & Pls.' Stmt. C
at ¶ 2). This was the first RIF in the Detroit Fire
Department (“DFD”) since 2005. (Union's Stmt.
and Pls.' Stmt. U at ¶ 11).
20, 2012, the City sent the Union a letter that stated, in
In compliance with required notification and in an effort to
keep you apprised of reductions to your labor union, please
see the attached list of position reductions. As a result of
these reductions, layoffs are anticipated. We anticipate that
the last day of work will be no later than July 20, 2012.
Layoff notices shall be issued in accordance with your
Collective Bargaining Agreement.
(Ex. 3 to City's Br.).
letter dated June 29, 2012, the City notified the Union that
City of Detroit Fire Department “is reducing the number
of DFFA positions by two-hundred and eighty-seven
(287)” and that “these reductions will result in
actual layoffs of 164 positions.” (Ex. 4 to City's
Br.). An August 2, 2012 Official Bulletin from the Office of
the Fire Commissioner, however, advised that “[d]ue to
retirements and demotions of personnel in the Fire Fighting
Division, the number of layoffs has dropped” to
“28 lay offs.” (Ex. 5 to City's Br.).
City announced that it would use City-Seniority, i.e., total
City years of service regardless of City departments, to
determine the DFD layoff order. (Union's Stmt. and
Pls.' Stmt. U at ¶ 13).
30, 2012, the City gave the DFFA a RIF “matrix”
or listing to show the intended RIF employment actions,
including demotions, transfers, and layoffs. (Union's Ex.
11). That matrix listed 29 firefighters who would be laid
off, but did not include Plaintiffs as layoff candidates.
(Id.; Union's Stmt. and Pls.' Stmt. U at
¶ 16). The matrix submitted to the Court does not
identify the races/nationalities of those who would be laid
off, demoted, or transferred.
in a letter sent on July 30, 2012, the DFFA urged the City to
use Department-Seniority, ie., seniority only within the DFD,
to determine layoff order. (Union's Ex. 12; (Union's
Stmt. and Pls.' Stmt. U at ¶ 18). That letter stated
that the lists created by the City violate the CBA by not
using Department Seniority. The letter included DFFA-created
lists that applied Departmental-Seniority, rather than
City-Seniority, to the City-forcasted employment actions.
Those lists included Plaintiffs as candidates for layoffs.
31, 2012, the DFFA filed a “Class Action Grievance
#17-12, Violation of Reduction in Force” (Union's
Ex. 14). That grievance vaguely asserted that the City was
violating the CBA in how it was laying employees off and
asked the City to cease and desist from violating the CBA and
“restore all members affected by illegal layoffs and
demotions.” (Id.). That grievance was
“filed before anyone was actually laid off.”
(Pls.' Stmt. U at ¶ 22).
August 2, 2012, the Union sued in Wayne County Circuit Court
to enjoin the closing of fire houses. (Pls.' Stmt. U at
¶ 24). At around that same time, the City and the Union
met again to review the projected RIF. (Pls.' Stmt. U at
¶ U 25).
August 10, 2012, the City laid off Plaintiffs and 16 other
firefighters, a total of 27 layoffs. (Pls.' Stmt. U at
¶ 28; Union's Exhibit 18). The layoff notices to
those laid off indicated the reason for the layoff was lack
of funds. (Id.). The layoff notices do not identify
the races/nationalities of those laid off.
on August 14, 2016, the Union wrote a letter to each
firefighter who was laid off, including Plaintiffs, stating
that the Union was doing everything it could do to hasten
their return. (Pls.' Stmt. U at ¶ 33; Union's
August and September of 2012, Plaintiffs and Union officers
met several times. (Pls.' Stmt. U at ¶ 35). In those
meetings, some Plaintiffs' challenged the Union's
reliance on department-seniority and indicated they wished to
file grievances regarding their layoffs. (Id;
Union's Exs. 25 & 26). Plaintiffs and Union officers
discussed the issue of how the layoffs were supposed to be
made under the CBA and rules. Union officers stated that they
were working on getting answers to the issue. (Id.).
were disagreements between Union executive board members with
respect to the applicable seniority rules and the Union
ultimately sought legal advice from counsel on the issue.
(Union's Stmt. at ¶ 52-53)
September 18, 2012, the Union's attorney sent the Union a
non-confidential opinion letter regarding seniority
(‘the Seniority Opinion Letter”), wherein counsel
stated “we believe that ‘total City
seniority' is the contractually-required metric for
determining the order of layoffs and demotions attributable
to a reduction in force, and no ‘past practice'
Invalidates this clear procedure.” (Union's Stmt.
at ¶ 58; Union's Ex. 33)
Union claims that it gave the Seniority Opinion Letter to
Plaintiffs immediately after receiving it. (Union's Stmt.
at 62). Plaintiffs assert that it is unclear whether all
Plaintiffs received the letter, and claim it is unclear as to
the timing of when the letter was distributed to Plaintiffs.
(Pls.' Stmt. U at 62).
Shack testified that the Union told him and other Plaintiffs
that they had checked and been told that the Plaintiff's
position about seniority was right, and that they would work
to fix the problem, around September 18, 2012, the day the
Seniority Opinion Letter was received by the Union. (Shack
Dep. at 171).
event, the Union advised its membership of its changed
position within days of having received the Seniority Opinion
Letter. The meeting minutes for the Union's September
24th and 25th regular general
membership meetings reflect that:
DEMOTIONS/LAYOFFS: President McNamara explained how and why
demotions and layoffs were decided and implemented by the
city. He further explained how the DFFA, without the
contractually obligated lists that were to be provided, wrote
a letter stating that layoffs were to be decided by
He went on to state this is incorrect and total city
seniority is to be used in determining layoffs and apologized
to the membership. The DFFA will argue that fact in grievance
President McNamara further reports the DFFA
requested/received a legal opinion regarding the
interpretation of language for demotion/layoffs. The attorney
advised that total city seniority is the primary basis for
reductions in force, demotion and recall.
It is the DFD's and the DFFA's opinion that human
resources did neither of what was mentioned, but incorrectly
applied a “3 year rule” to layoffs. This rule
only applies to demotions. We ...